### SERVED: AUGUST 27, 2012

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### U.S. DEPARTMENTOF TRANSPORT A**TIO:N'~\:·)**

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### OFFICE OF HEARINGS

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### WASHINGTON,DC

IN THE MATTER OF TIMOTHY GAUNA FAA DOCKETNO. [TO BEASSIGNED] (Civil Penalty Action) FDMS NO. FAA-2012- 0870

PROCEDURAL ORDER •\ C\: 

## 12 /-\ i

.



### In orderto expedite the hearing in this matter, the parties shall comply with the Procedural Schedule set forth hereinbelow 1• 

### The Rules ofPractice for this proceeding are set forth in 14 C.P.R. Part 13, Subpart G, ofthe Federal Aviation Regulations2• · 

### Those rules provide, inter alia, that the Respondent must file a written Answer ormotion within thirty (30) days after service ofthe Complaint (14 C.P.R. 

### § 13.209(a)), that a general denial is deemed a failure to file anAnswer(§ 13.209(e)), that failure to file an Answer without good cause is deemed an admission ofeach allegation in the Complaint (§13.209(f)), and that, absent agreement oftheparties, a party seeking an extension of timemust file a written motion not less than seven (7)days before the document is due, absent good cause shown(§ 13.213(a) and (b)).



# .. More specifically, 14 CPR§ 13.209 (e) states: A person filing an answer shall admit, deny, or state that the person is without sufficient knowledge orinformationto admit or deny, each numbered paragraph ofthe complaint. Any statement or allegation contained inthe complaintthat is not specifically denied inthe answer may beQeemed an admission of'the truth of that allegation. A general denial ofthe complaint is deemed a failure to file an answer. Under FAA Order 2150.3B and the Rules governing these proceedings, the Agency attorney and the Respondent are encouraged to consider the possibility of

1Materials filed in the FAA Hearing Docket (except for materials filed in security cases) are also available for viewing at http://www.regulations.gov. 2 The Administrator's civil penalty decisions, along with indexes ofthe decisions, the Rules ofPractice, as well as other materials relating to civil penalty cases, are available onthe internet at: http://wwwjaa.gov/ about/office_org/headquarters _offices/age/pol_adjudication/ agc400/civil __penalty!; see also: http://ecfr.gpoaccess.gov/cgi/t/text/text-idx?c=ecfr&tpl=/ecfrbrowse/Titlel4/l4tab

_02.tpl. In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw 9FTRAN-FAA database). For additional information, see the Web site. 

### 1settlement and compromise ofthis matter. 3 Compromise may be effected with or without a findingofviolation (14 C.F.R. §13.16 (n) (1)). NOTE: This presiding Judge does not require "Discovery" to be served on the Judge. Other Judges have different policies, but as long as this case is assigned to the undersigned presiding Judge the parties may, but are notrequired, serve discovery onthe 'undersigned. Thejudgewill not discuss the case with any party,4 or its representative on an ex parte basis. Ifa party has a non-substantive matter to discuss, they should contact Mr. IraLeibowitz at (202) 366-2139 (Ira.Leibowitz@dot.gov). Administrative matters may be addressed to StaffAssistant, PatMatthews [202-366-5121] (Patricia.Matthews@dot.gov). WHEREFORE, the parties be and are hereby ORDERED to adhere to the following procedural schedule: 

### 1. Venue shall be Chicago, IL.; 2. On orbefore November 9, 2012, the parties shall conclude all discovery including, butnot limited to, depositions, document production, responses to productionrequests and/or interrogatories. Ifthe parties cannot resolve a discovery dispute they shall submit the dispute to the undersigned for resolution in a timely manner; 3. The parties shall bepreparedto presentthis case at a hearing on or after November 9, 20125
, subject to the availability ofcourtroom facilities. The specific date and time for the hearing will be forthcoming in a separate'Order. 4. The parties will have the opportunity to file Post-Hearing briefs and arguments pursuant to a schedule to be determined at the hearing. For guidance, the following schedule is typically used: Complainant shall file its brieffifteen (15) days after receipt ofthe transcript; Respondent shall its brieffifteen{l5}days thereafter; and anyrebuttal briefby the Complainant shall be filed seven (7) days thereafter.

· 3 See LindaJoyce Goodman, FAA Docket No. CP89WP0061, Order dated May 30, 1989.

4 "Thepublic policy offavoring and encouraging settlement makes necessary the inadmissibility of settlement negotiations in orderto foster frank discussions". (Fiberglass Insulators, Inc. v Dupuy, et al, (856 F. 2d 652,26 Fed. R. Evid. Serv. 1225, 1988. See also Coakley & Williams Construction, Incorporatedv Structural Concrete Equipment, Incorporated, 973 F.2d 349, 1992; 2 McCormick onEvid. §266 (6th ed.); Rule 68 ofthe Federal Rules ofCivil Procedure.). Rule 408 ofthe Federal Rules of Evidence "

...prohibits the admission ofstatements made in compromise negotiations

..." (In the Matter of Africa Air Corporation, FAA Order No. 99-5). "Rule 408's public policy purpose ofencouraging frank settlement discussions is as compelling in FAA civil penalty proceedings as it is in Federal Trials. Hence, its guidance will be followed in these proceeds." (ld.) 5 14 C.F.R. § 13.221 states: "The administrative lawjudge shall give each party at least 60 days notice of the date, time and location ofthe hearing." 2



## •

### 5. Settled cases will not be removed from the hearing docket until the proper written pleading(s), consistent with the applicable rules, 6 

### is received bythe presiding judge. 7


### 6. The parties are advised that submissions sent to the street address ofthe U.S. DepartmentofTransportation, Office ofHearings, may be delayed due to screening conducted bythe U.S. Postal Service and/or other security agencies and may take up to four (4) weeks to be delivered, Additionally, submissions may be "irradiated", which affects the quality ofsubmissions. The parties are encouraged, but not required, to file submissions by private delivery service, facsimile, or email. The certificate ofservice shall reflect the manner ofservice. The parties are encouraged to provide email addresses to expedite service of pleadings.

"ichard C. Goodwin D.S. Administrative LawJudge Attachment

- Service List

,,

6 14 C.F.R. § 13.215 states: At any time before or during a hearing, an agency attorney may withdraw a complaint orparty may withdraw a request for a hearing without the consent ofthe administrative law judge. Ifan agency attorney withdraws the complaint or a party withdraws the request for a hearing and the answer, the administrative lawjudge shall dismiss the proceedings under this subpart with prejudice. 7 See: In the Matter ofLewis Drake & Associates, FAA Docket No. CP03S00045, DMS. No. FAA-2003- 16379, "OrderTerminating Proceeding", served February 26, 2005; citing Kerry James Eldridge, FAA Docket CP89GL0458, "OrderCanceling Hearing and Terminating Proceeding", served January 16, 1991, at 1; In The Matter ofRobert Harris FAA DocketNo. CP03EAOOOI. DMS No. FAA-2002-14236., Orders dated October 18,2004 and October 27,2004. USAIR, Inc., FAA Docket CP90NE0359, Trans World Airlines, Inc., FAA Dockets CP90GL0085, CP90CE0110, CP90CE0114, CP90CE0134, Order of Administrative Law Judge Burton S. Kolko, served April 8, 1992, p. 2. See "OrderDismissing Complainant's Appeal". In The Matter ofRobertHarris, FAA Docket No. CP03EAOOOI. DMS No. FAA2005-14, August 15,2005.


### 3

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 

### SERVICE LIST ORIGINAL & 

### ONE COPY

Attention: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite2W1000 1



### Timothy Gauna, 

### Respondent 2516 Lincoln Street ·Evanston, IL 60201 Kate Barber, 

### Complainant's Counsel Attorney, Office ofthe Regional Counsel Great Lakes Region,.AGL-7B Federal Aviation Administration 2300 East Devon Avenue Des Plaines, IL 60018 TEL: 847-294-7862 

### ONE COPY.

FAX: 847-294-7498 The Honorable Richard C. Goodwin,

### Administrative LawJudge Office ofHearings, M-20 · U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590

. " TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAX: 202-366-7536 FDMS No. FAA-2012-0870 (Civil Penalty Action)



# ..

1 Service was by U.S. Mail. For service inperson orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.